What affiliation with a university, if any, must complainants and/or respondents possess to ensure that plaintiffs have standing to hold universities accountable for deliberate indifference under Title IX? This threshold inquiry, one that is critically important to resolving preliminary questions of whether a university can be held accountable for alleged deliberate indifference to harassment, has been strangely difficult to answer. Neither the thousands of pages of decades worth of administrative Title IX guidance, nor any of the several Title IX related cases heard by the Supreme Court have directly and completely addressed this issue.
While the Department of Education (“ED”) has the power to clarify their perspective on who can hold universities accountable for deliberate indifference, recent regulations have not fully addressed this question, leaving advocates and attorneys without clear guidance as to what status, if any, is needed to sue for deliberate indifference.
Despite the prevailing confusion regarding how to answer this basic inquiry, as we enter the fall of 2022, this question is especially pertinent. First, in June of this year, the Biden administration released newly proposed Title IX regulations. In these proposed regulations ED re-defined the term complainant to mean, “(1) A student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX; or (2) A person other than a student or employee who is alleged to have been subjected to conduct that could constitute sex discrimination under Title IX and who was participating or attempting to participate in the recipient’s education program or activity when the alleged sex discrimination occurred.” Previously, the regulations defined a complainant only as “an individual who is alleged to be the victim of conduct that could constitute sexual harassment.”
ED’s effort to specifically establish that a person, other than a student or employee, has standing to file a sex discrimination complaint within a recipient institution likely indicates that ED believes a non-student complainant does have standing to sue a university for deliberate indifference under Title IX, assuming the complainant was participating, or attempting to participate in, the recipient’s education program or activity when the event the school was allegedly deliberately indifferent to occurred. That being said, it remains unclear whether ED will build on this by concretely addressing a complainants’ status and Title IX’s private right of action through further guidance. Notably, the proposed Title IX regulations do not currently address any aspect of Title IX’s private right of action, let alone its scope.
Second, the U.S. Court of Appeals for the Third Circuit recently addressed the scope of Title IX’s private right of action in Hall v. Millersville University, providing reasoning which can be applied to other cases related to standing and Title IX, particularly, as this article will argue, cases wherein non-students are victims.
A Quick History: Standing Under Title IX’s Private Right of Action & Hall
Case law has analyzed the question of whether a plaintiff can hold a university liable for deliberate indifference to alleged harassment under Title IX in two distinct contexts: (1) alleged deliberate indifference wherein the victim is a student, and the assailant is a non-student and (2) alleged deliberate indifference wherein the victim is a non-student and the assailant is a student.
In January of this year, the U.S. Court of Appeals for the Third Circuit answered the first question directly via Hall. The Third Circuit found that a university receiving federal funds can be held liable under Title IX, “for its deliberate indifference to known sexual harassment perpetrated by a non-student guest.” No doubt, Hall is an important case. No other federal appeals court has ruled on the non-student guest/student-victim standing question, making it a critical decision that directly affects a student-complainant’s ability to hold a university accountable, regardless of whether their abuser was affiliated with the school.
While the importance of this ruling for survivors is without question, advocates have pointed out that Hall is not truly an expansion of the law. Thus, while Hall, though important, may not be a groundbreaking revelation with regards to the first standing question presented above, I would argue it, through its reasoning, that it has the capacity to be groundbreaking for the second.
Deliberate Indifference in Cases Where Non-Student Guests are Victims
As is alluded to above, this discussion will focus mainly on two sub-issues within the context of non-student guests who are victims: (1) what current case law says regarding whether a non-student-victim can file a lawsuit under Title IX’s private right of action and (2) how an application of the recently decided Hall case can, and should, be applied in considering whether a non-student-victim should be able to file a lawsuit under Title IX.
Current Case Law: Two Critical Cases: Jane Doe & K.T.
The question of whether a non-student has standing to sue a school under Title IX remains unclear. There are several cases which indicate that, in the context of a non-student victim and student-assailant, federal courts are taking an approach which favors protecting schools from increased civil liability. At best, the current landscape surrounding this question can be described as a split, with most courts finding that the reach of Title IX does not extend to non-students, and others suggesting whether Title IX extends turns on the relationship the victim has to the school. Notably, even circuits which have found that, in theory, a non-student victim may, under certain circumstances have standing, appear to be hesitant to apply that logic to the facts in front of them.
Several recent district court cases have found that non-students do not have standing to sue a university, even if it acts with deliberate indifference towards a complaint regarding a student actively enrolled at the school. In Jane Doe v. Brown University, Jane Doe, a student at a neighboring college, met up with several Brown football players at a bar. They later assaulted her in a dorm at Brown. Jane Doe filed a lawsuit under Title IX, alleging that Brown acted with deliberate indifference towards her when they ultimately refused to investigate the students. The First Circuit affirmed the district court’s dismissal, finding that Jane Doe had no standing under Title IX. Notably, the First Circuit did leave room for the possibility that a non-student, under certain circumstances, could have standing.
In an even more extreme example, in K.T. v. Culver-Stockton College, a high school student was assaulted at a fraternity party during an athletic recruitment visit. The university refused to open an investigation, and the Eight Circuit affirmed the universities choice, finding that K.T. had no standing because she was not a student at the time of the assault. The court concluded that it was immaterial that K.T. was on campus at the request of the university athletics department. It left no room for a finding that, under certain circumstances, a non-student may have standing.
Legal Reasoning in Jane Doe & T.
Both K.T. and Brown considered a multitude of factors in arriving at their shared conclusion that a non-student-victim did not have standing under Title IX. In K.T., the court refused to interpret the “any person” language in Title IX to include non-students, essentially insisting that the plain text of Title IX makes clear that Title IX was meant only to protect students from schools which are deliberately indifferent to harassment. The K.T. court also emphasized that because K.T. did not attend the university, any university mistreatment towards her would not have the “systemic effect on education programs or activities” which Title IX’s private right of action requires. Lastly, the court found that, at the time the case was heard, no judicial precedent supported the argument that non-students should be protected from a university’s deliberate indifference towards them under Title IX.
The District Court in Brown, in coming to the same conclusion, made several additional points, while also reinforcing select arguments made in K.T.. For example, the court cited to K.T., displaying their apparent support for the argument that university mistreatment towards a non-student victim would not have the “systemic effect on education programs or activities” which Title IX’s private right of action requires. The Brown court also discussed the legislative intent behind Title IX, concluding that there was evidence that one of the congressional sponsors of Title IX intended to limit Title IX protections only to students. Seeing the limitations to this rather singular argument, the Brown court recognized that statements of one legislator made during debate are not controlling. Nonetheless, it argued that such assertions gave, “an authoritative guide to the statute’s construction.” Interestingly the courts apparent concern in looking to “authoritative guides” on Title IX stopped there, as evidenced by the total of lack of consideration of OCR guidance. Interestingly, both courts also considered that an “expansion” of Title IX’s reach could open the floodgates to increased liability for schools which was, in their view, inconsistent with the intent behind Title IX.
Applying Hall Reasoning to Brown and T: Arguments Addressed by Hall
While Hall does not address every point made in Brown and K.T., it does provide ED with several counter arguments to much of the anti-expansion reasoning discussed above. Through its discussion of judicial precedent, the intent behind Title IX, and the potential for increased liability under Title IX, Hall provides ED, should it want it, with rational arguments which support expanding standing to non-student victims. What follows is a brief discussion of what those arguments could look like.
Judicial Precedent
While K.T. proclaims that there is no judicial precedent that supports the argument that non-students should be able to hold universities accountable under Title IX, Hall arrives at a completely different conclusion. While the Third Circuit conceded that the Supreme Court case, Davis v. Monroe County Bd. of Ed., concerned only deliberate indifference to student-on-student harassment, it emphasized that the Court’s holding was not based on the classification of the harasser as a student. Instead, it found that the Court’s focus was:
…on whether the funding recipient had control over the harasser and the context of the harassment since the funding recipient can only ‘subject’ students to discrimination under Title IX if it has control over the harasser and remains deliberately indifferent to the harasser’s actions.
Applying this reading of Davis to a non-student-victim student-assailant context, ED could argue that, if the student is an assailant, the university has control over them, and thus should not be able to exhibit deliberate indifference to harassment perpetuated by them. In other words, while the K.T. court maintains that there is no judicial precedent that supports the argument that non-students should be able to hold universities accountable under Title IX, ED could point to Hall, which offers an interpretation of a Supreme Court case which directly supports the opposite conclusion.
Intent Behind Title IX
Hall also contemplates the intent behind Title IX, implicitly recognizing the scope of Title IX has extended far beyond what the original drafters likely imagined. While the Brown court, after analyzing only one legislator’s intent, stopped short of considering other “authoritative guides” related to Title IX, Hall, like many other courts contemplating similar questions, looked to OCR guidance. ED could argue that, applying Hall’s more robust approach to analyzing the intent behind Title IX, OCR has, at times, recognized that Title IX is meant to protect more than just students.
Applying Hall’s approach to analyzing the intent behind Title IX, ED could also point to a 2014 Question and Answer document, which, as Hannah Brenner in A Title IX Conundrum: Are Campus Visitors Protected from Sexual Assault explains, conceded that even in a situation wherein a school’s ability to take direct action against a perpetrator may be limited, “the school should still take steps to provide appropriate remedies for the complaint, and, where appropriate, the broader school population.” Brenner argues, as could ED, that this OCR guidance signals that Title IX is meant to protect the “broader student population.” Thus, ED could, in applying Hall and advocating for an expansion of the scope of Title IX, assert that the intent of Title IX, as revealed by OCR, is to keep the campus population, not just the individual who was directly affected by a student-assailant.
Increased Liability
Lastly, the Hall court directly addressed concerns raised in Brown and K.T. that an “expansion” of Title IX’s reach could subject universities to unwarranted increased liability. While the Third Circuit acknowledged that this is a valid policy concern, the court swiftly addressed this issue. It emphasized that, to be liable under Title IX, the complainant must show that the university had,“substantial control over both the harasser and the context in which the known harassment occurs” and that the university, having knowledge of the complaint, respond in a way that is “clearly unreasonable.”
Following in Hall’s footsteps, ED could reiterate the high bar needed to establish deliberate indifference under Title IX, illustrating the rarity of these cases generally and especially in the context of a non-student victim.
Though the Hall court did not contemplate any additional policy concerns, I would be remise if I did not briefly suggest another policy argument that ED could make. In theory, the United States government has a vested interest in raising healthy, educated, functioning members of American society. Thus, it is hard to imagine why we would not want a university, a place where we send millions of vulnerable young people who are about to become leaders and workers in American society, to be held liable if: (1) a university had substantial control over a harasser, (2) it had substantial control over the context in which the harassment occurred, (3) it had knowledge of the complaint, and (4) it nonetheless responded in a way that was “clearly unreasonable.” At the risk of being repetitive, when we talk about deliberate indifference, we are talking about liability for schools who essentially ignore or grossly mishandle cases related to sexual assault. Knowing the harm grossly mishandling these types of cases causes students, and yet allowing universities to continue without repercussions on a technicality related to the status of the student, is antithetical to the purpose of providing education to Americans in the first place.
Arguments Not Addressed by Hall
Admittedly, Hall does not provide a reply to all of the arguments in K.T. and Brown. Most notably, Hall does not interpret the plain language of Title IX, nor does it discuss the argument that deliberate indifference to an assault carried out by a student-respondent would lack the pervasive effect on the educational programs that Title IX requires. While Hall may not address these issues, it is not a stretch to suggest that, if ED wanted to, they could.
Statutory Interpretation
Though not discussed in Hall, Title IX is written broadly:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. (Emphasis added).
The plain language of Title IX does not prevent an expansion of the scope of Title IX. Moreover, at least one district court, concluded that if the legislature wanted to limit the protections under Title IX to only students, they could have simply written “no student” instead of “no person.” Pointing to this district court case and the plain language of Title IX ED could argue that the language of Title IX indicates that non-students should be able to bring claims of deliberate indifference under Title IX.
Pervasive Effect on Educational Programs
Moreover, though likewise not considered in Hall, the argument offered in K.T. and later adopted by Brown, that because a victim is not a student, deliberate indifference to an assault carried out by a student-respondent would not have a pervasive effect on the educational programs that Title IX is meant to prevent is, at best, questionable. At its’ worst, this view represents a gross misunderstanding of how the mishandling of any sexual assault on campus, regardless of whether the victim was a student, affects students. Particularly women identifying and queer students, who are, for all intents and purposes, being asked to attend universities that are on notice that one of their students may be harassing or assaulting people on campus and yet choosing to do nothing under the guise that the victim is not a student. Hannah Brenner summarized this issue best when she wrote:
If the promotion of safe campus communities is a priority…it seems irrelevant, discriminatory, and at odds with Title IX to distinguish among the “kind” of victim who is entitled to protection. After all, when sexual violence is allowed to proliferate on campus, the entire community of students, faculty, and staff is affected.
ED could make a similar argument that, when sexual violence is allowed to go unchecked, there is the pervasive effect on educational programs that Title IX requires, no matter the status of the complainant.
Conclusion
All of this is to say, there are arguments, many of which are rooted in recent case law, which support expanding the private right of action under Title IX to non-students. With ED, through their newly proposed definition of complainant, potentially sowing the seeds for supporting an expansion of Title IX’s private right of action, Hall seems like a gift. An appellate level case coming as ED could be gearing up to issue further guidance which directly addresses the question of Title IX’s private right of action and non-student complaints.
ED has shown, through many of the changes made in their newly proposed Title IX regulations, that they are truly committed to revamping Title IX in the name of two of its true purposes: promoting gender equity and protecting students from gender-based violence. Hopefully, ED will recognize the importance of Hall, as well as the value of holding schools accountable when they ignore the presence of known student-assailants on a technicality.
Maddie Xilas is a student at Loyola University Chicago School of Law and wrote this blog post for the Education Law Practicum.
